Contract
Exhibit 99.2
THIS AMENDED AND RESTATED PROMISSORY NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY IS SUBORDINATE
TO ALL SENIOR INDEBTEDNESS IN ACCORDANCE WITH THE TERMS OF THAT CERTAIN AMENDED AND RESTATED
SUBORDINATION AGREEMENT, DATED AS OF APRIL 26, 2006 (THE “SUBORDINATION AGREEMENT”), BY
XXXXXXX SEALING TECHNOLOGIES LLC (SUCCESSOR BY MERGER TO STEMCO DELAWARE LP) IN FAVOR OF BANK OF
AMERICA, N.A., AS AGENT FOR ITSELF AND CERTAIN OTHER SENIOR LENDERS.
STEMCO LP
Amended and Restated Promissory Note Due January 1, 2017
| Charlotte, North Carolina | ||
| $153,865,000 | As of January 1, 2010 |
1. Payment of Principal and Interest.
Stemco LP, a Texas limited partnership (hereinafter called the “Company”), for value
received hereby promises to pay to Xxxxxxx Sealing Technologies LLC, a North Carolina limited
liability company (and successor by merger to Stemco Delaware LP, a Delaware limited partnership),
or registered assigns (the “Holder”), the principal sum of One Hundred Fifty-Three Million
Eight Hundred Sixty-Five Thousand Dollars ($153,865,000), plus interest (computed on the basis of a
365-day year) on the unpaid balance of such principal amount at the applicable rate described
below, accruing from and after January 1, 2010, payable in the manner described below until such
balance shall have been paid or duly provided for. Payment of the principal of and interest on
this Note shall be made at the principal office of the Company or at such other office or agency as
the Company shall have designated in writing to the Holder of this Note, with any cash payments
required by the terms of this Note to be made in such currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts. The payment of
principal on this Note will be made only upon presentation and surrender of this Note at the
principal offices of the Company or, if so appointed, at the office or agency of the Company
referred to above. If not sooner paid, and if not accelerated as provided herein, the entire
remaining indebtedness shall be due and payable on January 1, 2017.
The outstanding principal amount of this Note (including all interest the payment of which has
been deferred pursuant to the terms of this Note) shall bear interest at a rate equal to 11.0% per
annum for the time period on and after January 1, 2010. Interest shall be payable to the Holder in
arrears on an annual basis, and interest payments shall be made on January 31 of each year for the
prior calendar year during the term of this Note, commencing January 31, 2011; provided,
however, that if any date on which interest would be payable pursuant to the preceding
clause is not a Business Day (as defined hereinafter), such payment may be made on the immediately
prior Business Day.
On each date on which interest is due pursuant to the foregoing paragraph, the Company shall
make a cash payment to the Holder in an amount equal to 6.5% per annum of the principal
balance outstanding under this Note and defer payment of an amount equal to 4.5% per annum of
the principal balance outstanding under this Note. The amount of any deferred payment (each, a
“PIK Amount”) shall become and be deemed to be an additional principal amount outstanding under
this Note on which interest shall begin accruing hereunder on the January 1 immediately preceding
the deferral date (compounded annually). To the extent requested from time to time by the Holder,
the Company shall issue a replacement note to evidence any PIK Amount; provided that the
absence of or failure to request or issue such replacement note shall not affect the validity of
such obligation, its character as principal, or the Company’s obligations with respect thereto.
Notwithstanding anything to the contrary herein, and subject to the provisions of the
Subordination Agreement, in the event that (a) the Holder is unable to pay the ordinary course
operating expenses of its business (which operating expenses, for avoidance of doubt, shall exclude
any losses, damages, liabilities, expenses or obligations related to asbestos litigation affecting
the Holder) for at least ten Business Days due to inadequate liquidity, and (b) the Holder is
unable to borrow under any credit facility to which it has access in order to fund the payment of
such operating expenses in the ordinary course of its business, the Holder may require the Company,
upon the date requested by the Holder at least ten business days after notice of the events
described in clauses (a) and (b) above is given to the Company, to pay to the Holder in cash any
accrued PIK Amounts required to meet such ordinary course operating expenses; provided, that in no
event shall the Company be required to make cash payments under this paragraph, (i) in any calendar
month, in excess of 1% of the principal balance then outstanding under this Note or (ii) in any
calendar year, in excess of 4.5% of the principal balance then outstanding under this Note.
Notwithstanding anything to the contrary herein, on each January 1 and July 1 commencing with
the first such date following the fifth (5th) anniversary of the date of this Note (each, an
“Accrual Date”), if the aggregate amount that would be includible in income of the Holder
with respect to this Note for periods ending on or before such Accrual Date (within the meaning of
Section 163(i) of the Internal Revenue Code of 1986, as amended (the “Code”)) (the
“Aggregate Accrual”) would otherwise exceed the sum of (i) the aggregate amount of interest
to be paid (within the meaning of Section 163(i) of the Code) under this Note on or before such
Accrual Date (determined without regard to the amounts payable on such Accrual Date), and (ii) the
product of (A) the issue price (as defined in Sections 1273(b) and 1274(a) of the Code) of this
Note and (B) the yield to maturity (interpreted in accordance with Section 163(i) of the Code) of
the Notes (such sum, the “Maximum Accrual”), then the Company shall prepay in cash a
portion of the accrued interest and PIK Amounts, if required, under this Note equal to the excess,
if any, of the Aggregate Accrual over the Maximum Accrual, and the amount of such payment shall be
treated for federal income tax purposes as an amount of interest to be paid (within the meaning of
Section 163(i)(2)(B)(i) of the Code) under this Note. The parties intend for this Note not to
constitute an applicable high yield discount obligation and not to have significant original issue
discount under Sections 163(e)(5) and 163(i)(2) of the Code, and this paragraph shall be
interpreted accordingly.
The Company and the Holder hereby agree that if, after the date hereof, the Company
suffers any loss or damage or incurs any liability or expense, in each case solely related to
allegations that the Company has liability to the Original Holder or for the Original Holder’s
liabilities based on alter ego, successor, veil piercing, transferee or other derivative
liability theories (collectively, “Damages”), the Company may set off the amount of such
Damages against any principal or interest amounts outstanding under this Note but only to the
extent of amounts actually paid by the Company. The Company acknowledges that, after any such set
off, the Holder will have the right to contest the Company’s determination that the Damages solely
related to allegations that the Company had liability to the Original Holder or for the Original
Holder’s liabilities based on alter ego, successor, veil piercing, transferee or other derivative
liability theories.
This Note is guaranteed pursuant to that certain Amended and Restated Guaranty (the
“Guaranty”) of even date herewith made by the Company’s parent, Coltec Industries Inc (the
“Parent”), and the Guaranty is secured by a pledge by the Parent of its interest in the
Company as its general partner and its interest in Stemco Holdings, Inc., a Delaware corporation
that is the limited partner of the Company, pursuant to that certain Amended and Restated Pledge
Agreement of even date herewith made by the Parent.
2. Registration, Assignment and Transfer and Exchange.
This Note shall not be sold, assigned, transferred, pledged or otherwise disposed of unless
notice is given to the Company as provided herein.
The transfer or assignment of this Note shall be effected by the Holder hereof by the delivery
of this Note, together with the instrument of assignment attached hereto as Exhibit I, properly
completed in accordance with the terms and conditions of this Note, to the Company at its principal
office or at such other location as the Company shall designate in writing to the Holder. Such a
transfer or assignment of this Note shall become effective only upon, and shall not be effective
for any purpose until, the Company has received this Note, acknowledged and approved such transfer
or assignment, and registered and delivered a new Note, executed by the Company, to the Assignee.
This paragraph shall not apply to the pledge of this Note by the Holder to a third party (e.g., as
security for obligations of the Holder to such third party), but shall apply to any transfer or
assignment of this Note to or by such third party pursuant to such pledge.
3. Definitions.
For all purposes of this Note, except as otherwise expressly provided or unless the context
otherwise requires:
“Business Day” means any day other than a Saturday, Sunday or a day on which banking
institutions in the State of North Carolina are authorized or obligated by law or executive order
to close.
“Company” means the Person named as the “Company” in the first paragraph of this
instrument until any successor shall have become such pursuant to the applicable provisions of this
Note, and thereafter “Company” shall mean any such successor.
“Event of Default” has the meaning specified in Section 4.
“Holder” means the Person named as the “Holder” in the first paragraph of this
instrument until any successor shall have become the holder hereof pursuant to the applicable
provisions of this Note, and thereafter “Holder” shall mean any such successor.
“Note” means this Amended and Restated Promissory Note, as it may be amended from time
to time.
“Original Holder” means Xxxxxxx Sealing Technologies, LLC, a North Carolina limited
liability company.
“Person” means an individual, partnership, corporation, joint stock company, trust
(including a business trust), unincorporated association, joint venture or other entity, or a
foreign state or political subdivision thereof or an agency of such state or subdivision.
The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this
Note as a whole and not to any particular Section or other subdivision.
4. Events of Default.
“Event of Default,” with respect to this Note, wherever used herein, means each one of
the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon this Note when the same becomes due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of any principal of this Note when it becomes due; or
(c) default in the performance, or breach, of any other covenant or warranty of the Company in
respect of this Note, and continuance of such default or breach for a period of 60 days after there
has been given to the Company by the Holder, by registered or certified mail, a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or
(d) the entry of a decree by a court having jurisdiction in the premises adjudging the Company
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under the Federal Bankruptcy
Code or any other applicable federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial part of its
property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(e) the institution by the Company of proceedings to be adjudicated as bankrupt or insolvent,
or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition, answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable federal or state law, or the consent by it to
the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part of its property,
or the making by it of a general assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due.
5. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then the Holder of this Note may declare the
principal of this Note to be immediately due and payable, by a notice in writing to the Company,
and upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to this Note has been made
and before a judgment or decree for payment of the money due has been obtained by the Holder as
hereinafter provided, the Holder by written notice to the Company may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Holder a sum sufficient to pay
(i) all overdue installments of interest on this Note, and
(ii) the reasonable expenses and disbursements of the Holder, its agents and counsel;
and
(b) all Events of Default, other than the non-payment of the principal of this Note which has
become due solely by such acceleration, have been cured and waived as provided in Section 9.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
6. Restoration of Rights and Remedies.
If the Holder has instituted any proceeding to enforce any right or remedy under this Note and
such proceeding has been discontinued or abandoned for any reason, or has been determined adversely
to the Holder, then and in every such case the Company and the Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Holder shall continue as though no such
proceeding had been instituted.
7. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Holder is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
8. Delay or Omission Not Waiver.
No delay or omission of the Holder to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Note or by law to the Holder may
be exercised from time to time, and as often as may be deemed expedient, by the Holder.
9. Waiver of Past Defaults.
The Holder may waive any past default hereunder and its consequences. Upon any such waiver,
such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Note, but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
10. Certain Covenants of the Company.
The Company hereby covenants with the Holder of this Note as follows:
(a) Payment of Principal, Premium and Interest; Compliance with Terms.
With respect to this Note, the Company will duly and punctually pay the principal of and
interest on this Note in accordance with the terms of this Note, and will duly comply with all the
other terms, agreements and conditions contained in, or made in this Note for the benefit of the
Holder of this Note.
(b) Existence.
The Company will do, or cause to be done, all things necessary to preserve and keep in full
force and effect its existence.
11. Exemption from Individual Liability.
Except as set forth in the Guaranty or as may be required under applicable law, no recourse
under or upon any obligation, covenant or agreement of this Note, or for any claim based thereon or
otherwise in respect thereof, shall be had against any organizer, owner, officer, director, or
employee, as such, past, present or future, of the Company or of any successor to the Company,
either directly or through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise. In this regard, it is
expressly understood that this Note is solely an obligation of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the organizers, owners,
officers, directors, or employees, as such, of the Company or of any successor to the Company, or
any of them, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Note or implied therefrom. Further,
that any and all such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such organizer, owner, officer,
director, or employee, as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Note or implied therefrom, are hereby expressly waived and released as a condition of, and as
a consideration for, execution of this Note.
12. Note Not for Distribution.
The Holder is acquiring, and by acceptance on original issue or upon assignment agrees that
the Holder has acquired this Note, for investment and not for public distribution, since the Note
has not been registered under the Securities Act of 1933, as amended.
13. Notices.
All notices hereunder shall be made as follows:
If to the Company, at:
Stemco LP
c/o EnPro Industries, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Treasurer
c/o EnPro Industries, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Treasurer
If to the Holder, at:
Xxxxxxx Sealing Technologies LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Vice President of Finance
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Vice President of Finance
14. Governing Law.
This Note shall be governed by and construed in accordance with the laws of the State of North
Carolina, without reference to the choice of law principles thereof.
15. Amendment and Restatement.
This Note amends and restates that certain Promissory Note dated March 11, 2005 in the
original principal amount of $153,865,000 (the “Original Note”). All rights, benefits,
indebtedness, interests, liabilities and obligations of the parties under the Original Note are
hereby renewed, amended, restated and superseded in their entirety according to the terms and
provisions set forth in this Note. This Note shall not constitute, nor shall it result in, a
waiver of, or release, discharge or forgiveness of, any amounts payable pursuant to the Original
Note or any indebtedness, liabilities or obligations of the Company thereunder, all of which are
hereby renewed and continued and are hereafter payable and to be performed in accordance with this
Note. This Note shall not and does not extinguish the indebtedness or liabilities outstanding in
connection with the Original Note, nor does it constitute a novation with respect thereto.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the day and
year first above written.
| STEMCO LP |
||||
| By: | Coltec Industries, Inc., its General Partner | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Treasurer | |||
| Acknowledged and agreed: XXXXXXX SEALING TECHNOLOGIES LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
EXHIBIT I
FORM OF ASSIGNMENT
The undersigned Holder of this Note hereby assigns to (herein
called the “Assignee”) of the interest of the undersigned in such Note, with the effect
and subject to the provisions set forth in the Note, such assignment to be effected by delivery of
the Note to the Company with this assignment properly completed in accordance with the terms and
conditions of this Note, such transfer or assignment to become effective on, and not to be
effective for any purpose until, the Company has acknowledged such transfer or assignment and
executed and delivered a new Note to the Assignee registered in the name of the Assignee (and, in
the case of a partial assignment, a new Note to the undersigned Holder).
| Signature |
Dated:
Fill in for registration of new Note:
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